Beyond Line of Sight (BVLOS) Aviation Rulemaking Committee (ARC) Final Report

By | March 24, 2022

The Part 108 Proposal:

Rulemaking Committee Issues Final Report on Beyond Visual-Line-of-Sight Drone Operations

 

by Trevor Simoneau

 

Dramatic changes are coming to drone operations. The highly anticipated concept of beyond visual line-of-sight (BVLOS) drone flying may finally become a reality. An Aviation Rulemaking Committee (ARC) has issued a final report about the topic, which includes recommendations for rulemaking. At this point, the BVLOS drone operations have made it through the first regulatory hurdle.

The purpose of this article is to highlight specifically intriguing recommendations made by the ARC to the FAA and provide analysis of some of the proposed regulatory text of what might possibly become “Part 108.”2

Download and read the complete report here.

Initial Review

In June 2021, the Federal Aviation Administration (FAA) formed an Aviation Rulemaking Committee (ARC) to address the burgeoning issue of beyond visual line-of-sight (BVLOS) uncrewed aircraft system (UAS) operations.[1] The primary goal of the committee was to “provide recommendations to the FAA for performance-based regulatory requirements to normalize safe, scalable, economically viable, and environmentally advantageous UAS BVLOS operations that are not under positive air traffic control (ATC).”[2]

This purpose statement outlines four key pillars of concern the FAA has chosen to focus on with respect to BLVOS UAS operations: economy, safety, environment, and equity.[3] On March 10, 2022, the ARC issued their final report. Amounting to 381 pages in total, the report contains a myriad of recommendations, including a framework for the FAA to commence rulemaking procedures to establish new “Part 108” regulations, which would govern BVLOS UAS operations.

The report divides the ARC’s recommendations to the FAA into seven categories:[4]

  • Air & Ground Risk Recommendations
  • Flight Rules Recommendations
  • Aircraft & Systems Recommendations
  • Operator Qualifications Recommendations
  • Third Party Services Recommendations
  • Environmental Recommendations
  • General Recommendations

The report also proposes a new regulatory framework, 14 C.F.R. Part 108.[5] The ARC has even drafted sample text for certain Part 108 regulations. Moreover, the report includes potential regulations within Part 108 where the committee’s recommendations could explicitly be addressed.[6] However, not every recommendation is addressed specifically by one of the proposed regulations, most notably, none of the environmental and general recommendations.[7]

In total, the ARC has made 70 recommendations. Specifically:

Category Number
Air & Ground Risk 9 recommendations
Flight Rules 9 recommendations
Aircraft & Systems 10 recommendations
Operator Qualifications 20 recommendations
Third Party Services 2 recommendations
Environmental 5 recommendations
General 15 recommendations
  70 recommendations TOTAL

 

The FAA Rulemaking Process

Before diving into an analysis of the ARC’s recommendations regarding BVLOS UAS operations, it is first important to understand the FAA rulemaking process. To be clear, the Part 108 framework and proposed regulations included in the report are not presently rules; they do not carry the force of law that current regulations, such as Part 107, do. Additionally, at the time of writing, there has not yet been action taken by the FAA to implement any of the recommendations.

It is unclear when the FAA plans to commence rulemaking procedures to address the recommendations of the ARC. At the time of writing, there have been no press releases or policy statements issued by the FAA specifically addressing the timeline for BVLOS rulemaking. [Brendan Schulman Remote ID tweet reference?]. However, when they do, the process will probably look a lot like this:

  1. The FAA will issue a Notice of Proposed Rulemaking (NPRM) in the Federal Register.[8] The Federal Register is essentially the newspaper of the federal government. The NPRM will contain the new proposed BVLOS rule and other legally required information such as the FAA’s authority for issuing regulations.[9]
  2. After the NPRM has been issued, there will be a period allotted for the general public to submit comments about the rule. At this stage, anyone may participate in the rulemaking process by submitting a comment to the rulemaking docket via regulations.gov.
  3. Once the public comment period is over, the FAA will review and consider the comments and subsequently issue a final rule.[10] When the FAA does issue a final rule, the agency is legally required to also issue a statement addressing the basis and purpose for the rule.[11]

The FAA rulemaking process described above is governed under § 553 of the Administrative Procedure Act (APA).[12] It’s the same process used by the FAA several years ago when the agency first issued the proposed Part 107 regulations, the rules governing UAS operations today. Over the next year, be on the lookout for social media posts advertising a request for public comments about the proposed BVLOS rules.

Analysis of Specific Recommendations

I. Air & Ground Risk Recommendations

Air & Ground Risk Recommendation 2.2:

“The rules should be predicated on the risks of operation based on UA capability, size, weight, performance, and characteristics of the operating environment as opposed to the purpose of the operation.”

The ARC has determined that BVLOS regulations should be based on levels of risk associated with the particular characteristics of a particular UA, specifically, UA capability, size, weight, performance, and characteristics of the operating environment. The ARC notes that “risk levels are based on the strategic air and ground mitigations applied to the operation.”[13] There are four risk levels proposed by the ARC: level 3, level 2A, level 2B, and level 1.[14]

Air & Ground Risk Recommendation 2.3:

“BVLOS operations to the greatest extent possible should be allowed to occur through compliance with the regulation alone without the need for a waiver or exemption.”

This recommendation indicates the ARC’s intent for waivers to no longer be necessary for BVLOS operations once new rules are implemented. The ARC notes that each proposed risk level should allow for BVLOS operations to be conducted without waivers or exemptions.[15] Waivers or exemptions should only be necessary in certain higher-risk operations.[16]

Air & Ground Risk Recommendation 2.4:

“The FAA should encourage voluntary reporting in accordance with the UAS Aviation Safety Reporting System (ASRS).”

This recommendation, if included in the final rule, would aid in promoting UAS safety initiatives and foster regulatory compliance. It is unclear if participation in the voluntary reporting system would be integrated with the FAA’s compliance philosophy.[17] The ARC notes that the FAA should provide guidance on what types of information should be reported and includes flight hours and basic safety metrics as examples.[18]

Air & Ground Risk Recommendation 2.6:

“The rule should allow UAS to conduct transient flight over people. The rule should allow sustained flight over non-participants with strategic and/or technical mitigations applied.”

There is little doubt that for BVLOS operations to be successful, both transient and sustained flight over people (particularly people not involved with the BVLOS operations) will be necessary. The ARC agrees and proposes these types of operations should be permitted by the new BVLOS rule if an acceptable level of risk (ALR) is established and met. The ARC argues that “the relevant time-based exposure is what contributes the most exposure to ground risk. While the ARC strongly supports a single set of ALR values for UA operations, the ARC recommends differentiating between flights that transit populated areas for only a short duration of time… versus the exposure of a flight with characteristics of sustained flight over people.”[19] Essentially, as long as appropriate risk mitigations are applied, these operations should be permitted.

II. Flight Rules Recommendations

Flight Rules Recommendation 2.4:

“The FAA should amend FAR Rule Part 91.113(d) to give UA[20] Right of Way for Shielded Operations.”

The ARC addresses right-of-way issues for both shielded and non-shielded operations in its report.[21] A “shielded area is defined as a volume of airspace that includes 100’ above the vertical extent of an obstacle or critical infrastructure and is within 100 feet of the lateral extent of the same obstacle or critical infrastructure.”[22] The ARC observes that crewed aircraft operations in this area of airspace are rare and hazardous. Consequently, there is a low risk for UA and crewed aircraft encounters or collisions in shielded areas.[23] So, it makes sense for UAS conducting BVLOS shielded operations to have the right-of-way over all other aircraft. The ARC proposes adding a new part (4) to 14 C.F.R. § 91.113(d) reading: “(4) Uncrewed Aircraft conducing BVLOS Shielded Operations have right of way over all other aircraft.”[24]

Flight Rules Recommendation 2.6:

“The FAA should revise § 91.103 to include a new part (c) to accommodate UA operations.”

Responsibility and authority of the remote pilot in command (RPIC) is an essential component to the UAS regulatory framework. An important element of RPIC responsibility is preflight action, specifically, becoming familiar with certain aspects of the planned UAS operation before actually going flying. The ARC addresses this element and recommends modifying the existing regulatory text of 14 C.F.R. § 91.103 to include a new part requiring certain preflight action responsibilities for BVLOS operations.[25] This action would include confirming “conditions for safe operation and safe launch and landing areas by consulting relevant information, which may include weather station information, systems and sensors on-aircraft and other flight support systems.”[26]

Flight Rules Recommendation 2.7:

“The FAA should amend § 91.119 to allow UA operations below the Minimum Safe Altitude restrictions.”

Here, the ARC addresses the unique capabilities of UAS and recommends that they should be allowed to fly below the current Minimum Safe Altitude (MSA) restrictions.[27] The ARC recommends modifying the regulatory text of 14 C.F.R. § 91.119.[28] Interestingly, the ARC also suggests that its 91.119 amendment “would allow lower risk UA BVLOS to conduct certain types of higher risk crewed aircraft operations (e.g., agricultural spraying and helicopter inspections of power lines) and reduce the number of deaths that occur in these operations every year.”[29]

Flight Rules Recommendation 2.8:

“The FAA should amend FAR Rule Part 107.31 to include Extended Visual Line of Sight.”

In this recommendation, the ARC proposes that 14 C.F.R. § 107.31 should be amended to permit extended visual line of sight operations meaning that the RPIC need not maintain visual line of sight with the UAS, “but a trained crewmember has situational awareness of the airspace around the UAS.”[30] The ARC has noted that this is technically a BVLOS operation, but cites a UAS that flies on a different side of a building as the RPIC is standing or around tress as examples.[31]

III. Aircraft & Systems Recommendations

            Aircraft & Systems Recommendation 2.1:

“The FAA should establish a new ‘BVLOS’ Rule which includes a process for qualification of uncrewed aircraft and systems. The rule should be applicable to uncrewed aircraft up to 800,000 ft-lb of kinetic energy in accordance with the Operating Environment Relative Risk Matrix.”

In its first aircraft and systems category recommendation, the ARC proposes that a “new alternative regulatory pathway” should be implemented to enable commercial BVLOS operations.[32] This alternative is Part 108. Regulations within Part 108, similar to the regulations contained within Part 107, will govern BVLOS UAS operations. The ARC includes several recommendations detailing what issues and operational considerations should be included in Part 108 regulations. The ARC also recommends that the rule address maintenance, repair, modifications, and software qualifications for UA and AE.[33]

Aircraft & Systems Recommendation 2.4:

“The new rules should include UA noise certification requirements appropriate to the operating environment. Compliance should be demonstrated through a simple testing methodology.”

In considering the environmental impact of BVLOS UAS operations, the ARC recommends there should be UAS noise certification requirements included within Part 108 regulations.

Aircraft & Systems Recommendation 2.7:

“Establish a new Special Airworthiness Certification for the UAS category under Part 21.”

The ARC notes that its intent for this recommendation is for the FAA “to create a regulatory framework for UA that is similar to that of Light-Sport Category aircraft using an FAA accepted declaration of compliance to an FAA-accepted means of compliance, which includes industry standards.”[34] The ARC also comments that the proposed Part 21 Special Airworthiness Certification (SAC) is designed for commercial BVLOS operations flying in higher-risk scenarios.[35]

Aircraft & Systems Recommendation 2.8:

“The FAA should establish a Repairperson Certification for the UAS Category to perform inspection, maintenance, and repair of UAS holding SAC under this proposal.”

The ARC addresses the importance of ensuring UAS maintenance is conducted by “adequately trained” individuals by recommending the creation of a new UAS category repairperson certification. The ARC suggests that the Light-Sport Category repairperson certification could be used as a template, or the FAA might even “consider adding UAS specific training to the existing LSA course or consider offering a supplement qualified repairpersons to become qualified to work on UAS.”[36]

Aircraft & Systems Recommendation 2.10:

“The FAA should consider allowing third party test organizations to audit compliance.”

This recommendation is further addressed by the ARC in its two specific “Third Party Services” recommendations. See below.

IV. Operator Qualifications Recommendations

            Operator Qualifications Recommendation 2.1:

“The FAA create a new 14 CFR Part that governs UAS BVLOS Pilot and Operator certification requirements and operating rules.”

Again, we see the ARC recommending the development of a new regulatory framework for BVLOS UAS operations. In this category of recommendations, the ARC’s focus is remote pilot certification and the logistics of BVLOS UAS operations. The ARC notes that the new rule should cover all aspects of BVLOS UAS operations not addressed by Part 107 and offers a proposed organizational structure for the new regulations.[37]

Operator Qualifications Recommendation 2.3:

“The FAA modify 14 CFR Part 107 to enable limited BVLOS operations under the existing Remote Pilot with Small UAS Rating certificate.”

The ARC proposes that the FAA should amend Part 107 to permit current remote pilots with a small UAS rating (sUAS) to participate in limited BVLOS operations. The ARC further notes that mitigation controls should be used, but the existing use of specific FAA Part 107 waivers should not be required.[38]

Operator Qualifications Recommendation 2.4:

“The FAA expand the knowledge test for the 14 CFR Part 107 Remote Pilot Certificate with Small UAS Rating to cover topics associated with EVLOS and shielded UAS operations.”

With respect to the certification of remote pilots, the ARC suggests integrating an assessment of BVLOS UAS operations to the Part 107 knowledge test (more commonly referred to as the written exam). Specifically, the ARC recommends that topics like communication and monitoring requirements for limited BVLOS operations, navigation requirements for limited BVLOS operations, and strategic and technical risk mitigations for limited BVLOS operations, among others, should all be assessed.[39]

Operator Qualifications Recommendation 2.5:

“The FAA establish a new BVLOS rating for the Remote Pilot certificate under the new 14 CFR Part.”

While limited BVLOS operations may be covered under Part 107, according to the ARC, operations that go beyond the scope of Part 107 limited BVLOS must have their own pilot certification requirements. The ARC suggests these certification requirements should be a component of the new Part 108 rules. The ARC recommends that the FAA should establish a BVLOS rating that remote pilots may obtain, similar to how private pilots may obtain an instrument rating. Additionally, the ARC supports both “direct and progressive” pathways to obtaining the BVLOS rating.[40]

Operator Qualifications Recommendation 2.9:

“Remote Pilots certificated under Part 107 that have completed a BVLOS training program certified by a public aircraft operator entity (as defined in 14 CFR Part 1) should be able to receive their BVLOS rating via online training, similar to the existing Part 107 certification pathway for current Part 61 pilots.”

One of the pathways to the BVLOS rating proposed by the ARC is similar to the current pathway for private pilots (or any Part 61 pilot) to obtain a remote pilot certificate. The ARC has considered that there are many currently certificated remote pilots who will be interested in adding the BVLOS rating. So, the ARC suggests that after completion of a BVLOS training program, current remote pilots “should be able to receive their BVLOS rating via online training.”[41]

Operator Qualifications Recommendation 2.11:

“Create two levels of Operating Certificates for commercial UAS operations: a Remote Air Carrier certificate and a Remote Commercial Operating certificate.”

Here, the ARC addresses the specific issue of BVLOS UAS operations for commercial purposes (in other words, when someone is paying you to operate a UAS BVLOS to capture images or videos, you’re operating a UAS for compensation or hire). The ARC recommends developing two different commercial operating certificate levels: a Remote Air Carrier certificate and a Remote Operating certificate. Once again, the ARC appears to be following the traditional blueprint for crewed commercial operations, which also have an Air Carrier Certificate and Operating Certificate option. The ARC proposes that these certification requirements should be established under existing Part 119 regulations and that the specific operating requirements be established under Parts 121 and 135.[42] If the FAA moves forward with this recommendation, “Part 121 drone operations” and “Part 135 drone operations” may be terms we begin hearing in the not-so-distant future.[43]

Operator Qualifications Recommendation 2.13:

“Create Operating Requirements that govern Remote Air Carrier and Remote Operating certificate holders.”

This recommendation seems, perhaps, obvious; yet here the ARC has identified the importance of the inevitable distinction between what operations may be permitted under a “Remote Air Carrier” certificate versus a “Remote Operating” certificate. Think about this distinction like you would the rules governing operations as a “Part 121 Air Carrier” as opposed to a “Part 135 Operator.” The ARC suggests adding Part 121/135 topics to the new Part 108 rule.[44] These topics would include recordkeeping and maintenance manuals, flight crew qualifications and duty limitations, aircraft requirements, upgrade and currency training, etc.[45]

Operator Qualifications Recommendation 2.14:

“Create Certification and Operating Requirements that govern Agricultural Remote Aircraft Operations.”

In the ARC’s charter, the FAA specifically required the ARC to “at a minimum… address requirements to support… precision agriculture operations, including crop spraying.”[46] So, the ARC has addressed the issue with this recommendation. The ARC recommends adding a new sub-part (G) to Part 137 regulations to govern the certification and operation of UAS for agricultural purposes.[47]

Operator Qualifications Recommendation 2.16:

“The FAA should develop tailored medical qualifications for UAS pilots and other crew positions that consider greater accessibility and redundancy options available to UAS.”

This recommendation is particularly significant. The ARC recommends that the FAA develop a new medical certificate specifically for UAS pilots. The ARC argues that establishing medical requirements for UAS crew will aid in “opening the door for extensive contributions by people who would otherwise be disqualified from piloting a crewed aircraft.”[48] So, the ARC “recommends that the FAA develop tailored medical qualifications for UAS pilots and other crew members that reflect the reduced physical requirements for flying UA… while ensuring appropriate standards of overall health necessary to perform UA crew duties.”[49] It remains unclear what the specific medical standards or regulatory text for an UA medical certificate would look like.

Operator Qualifications Recommendation 2.19:

“Allow only appropriately vetted UAS operators that are approved by the relevant authority to conduct operations deemed to be a higher security risk.”

In this recommendation, the issue of UAS security is addressed. The ARC proposes that the appropriate “relevant authority” should be the Transportation Security Administration (TSA) to administer a security vetting process for Remote Pilot Certificate holders.[50] The ARC cites 49 U.S.C. § 44903(j)(2)(D) as the requirement for Part 107 and Part 91 pilots to be vetted.[51] Specifically, the ARC recommends that “UAS Operators, Remote Pilots and crew that intend to conduct high-risk UAS operations, or operations conducted in proximity to security-sensitive facilities or locations,” must be appropriately vetted.[52]

V. Third Party Services Recommendations

            Third Party Services Recommendation 2.1:

“The FAA should adopt a regulatory scheme for third party services to be used in support of UAS BVLOS.”

The ARC hinted at the use of third parties to support BVLOS UAS operations in aircraft & systems recommendation 2.10. Here, the committee has explicitly recommended that the FAA develop a regulatory framework for third party service providers (3PSPs) to support BVLOS UAS operations. The ARC proposes that an FAA certificate should be established for 3PSPs under the new Part 108 rules.[53] In its second third party services recommendation, the ARC also suggests that the FAA and NASA should collaborate to conduct a study “to determine what level of airspace would trigger the need for mandatory participation in federated or third-party services.”[54]

VI. Environmental Recommendations

            Environmental Recommendation 2.1:

“As the FAA reviews the BVLOS Rule, the ARC recommends the FAA determine that the BVLOS Rule is unlikely to result in significant impact to the environment.”

With this recommendation, the ARC is suggesting that whatever version of the new BVLOS rules are eventually enacted by the FAA, they must be environmentally friendly (specifically, it must be determined the rules will not have a “significant” impact to the environment). The ARC cites the National Environmental Policy Act, enacted in 1970, which requires administrative agencies to consider the impact their rules will have on the environment.[55] The ARC determines that it is not “reasonably foreseeable that a BVLOS Rule would lead to significant impacts in any of the relevant environmental impact categories specified in FAA Order 1050.1F.”[56] This FAA order outlines the agency’s practices for compliance with NEPA.[57] The ARC asserts that Part 108 BVLOS rules would not cause any significant environmental impacts.[58]

Environmental Recommendation 2.3:

“Environmental reviews should not be required for individual BVLOS operations enabled by the Rule.”

The ARC notes that the “current NEPA review process for individual expanded operations have proven particularly problematic for UAS operators because of the tremendous uncertainty and delay that such reviews inject.”[59] So, the ARC recommends that the final rule permitting BVLOS UAS operations should not subject each individual operation to NEPA environmental reviews. The ARC notes that the FAA should “undertake appropriate environmental review of the BVLOS Rule and leverage this review to broadly enable individual BVLOS operations pursuant to the rule.”[60]

Environmental Recommendation 2.5:

“The FAA interpret NEPA in a way that expedites the BVLOS rulemaking. If the FAA concludes that it is required to implement NEPA in such a way that would substantially delay either the BVLOS rulemaking or BVLOS operations, the ARC recommends asking Congress to consider legislative actions.”

Here, the ARC recommends that the provisions of NEPA be complied with “while avoiding unnecessary delay in approving environmentally friendly UAS operations for the benefit of the American public.”[61] It’s interesting that ARC references the benefit to the American public here as it speaks to the overall issue of broad public acceptance and the overall role of populations in shaping policy. It’s also noteworthy that the ARC recommends Congressional action should BVLOS rulemaking be delayed because of NEPA compliance. The ARC notes that “legislative action should be considered to avoid the unintended scenario where the environmental review process developed to satisfy an environmental statue hinders the adoption of sustainable, environmentally friendly modes of transportation, inspection, and monitoring.”[62]

VII. General Recommendations

            General Recommendation 2.2:

“Public Perception – The industry must continue to work with all governments, including federal, tribal, state, and local, as well as directly with communities to enhance public understanding of the benefits of UAS BVLOS use.”

Public perception is always an important part of forming policy. It’s noteworthy that the ARC recognizes this and formally recommends that entities other than solely the federal government be involved in shaping public opinion of BVLOS UAS operations.

General Recommendation 2.3:

“Immediately after promulgating the new BVLOS rule, the FAA should issue an Advisory Circular providing guidance.”

It is typical for the FAA to issue guidance via an Advisory Circular to address confusing or detailed provisions within the agency’s regulations. It is inevitable the final rule, when issued by the FAA, will be subject to many questions of regulatory interpretation. Here, the ARC suggests an advisory circular may assist in answering those questions.

General Recommendation 2.9:

“Counter-UAS Issues – The US government should renew the Preventing Emerging Threats Act.”

Once again, the issue of UAS security is addressed by the ARC in this recommendation. The ARC notes that if BVLOS UAS operations are to ever safely scale, “federal national security agencies must continue to have the legal authority to protect against potential public safety and homeland security threats posed by rogue UA.”[63] With this recommendation, the ARC is petitioning Congress (not necessarily solely the FAA) to take action to renew the Preventing Emerging Threats Act, originally passed in 2018.[64]

General Recommendation 2.15:

“Until the new rule is promulgated, the proposed framework outlined in the Operations Matrix should be leveraged as Guidance Material for applicants and reviewers under the existing FAR Part 107 Waiver Process.”

It remains unclear when exactly the new BVLOS rules will be enacted, but until they are, the ARC recommends that its findings be utilized as part of the current Part 107 waiver process.

Part 108 Proposed Regulatory Text

In addition to recommending a new regulatory framework to govern BVLOS UAS operations (Part 108), the ARC has outlined what certain regulations within Part 108 would look like. Examples of the plain regulatory text are included within the ARC’s final report. The ARC has also proposed changes to existing regulations, including 14 C.F.R. § 1.1 (general definitions), § 91.103 (pre-flight action), § 91.113 (right-of-way rules), and § 107.31 (visual line of sight).[65]

For the purposes of this article, only the proposed text for Subpart B (operating rules) is included. You can view the complete Part 108 proposed text in the final report at pages 151 through 187.

ARC Proposed New Part 108 Regulations (Selected List)[66]

108.11 Applicability

This Subpart applies to UAS BVLOS operations at the following Automated Flight Rules (AFR) Levels:

(a) For UA within 25,000 ft lbs. or less of kinetic energy, including everything that is on board or otherwise attached to the aircraft, operating at:

  1. AFR Level 2 Automation: a pilot to UA ratio greater than 1:5
  2. AFR Level 3 Automation: a pilot to UA ratio greater than 1:20

(b) For UA with no more than 25,000 ft lbs. of kinetic energy, including everything that is on board or otherwise attached to the aircraft, operating at: a pilot to UA ratio greater than 1:5.

108.15 Condition for safe operation

(a) No person may conduct a BVLOS UA operation unless the UA is in a condition for safe operation. For a BVLOS UA flight under AFR, the remote pilot in command will take appropriate steps to confirm conditions for safe operation and safe launch and landing areas by consulting relevant information, which may include weather station information, systems and sensors on-aircraft and other flight support systems. Prior to each flight, the remote pilot in command must check the uncrewed aircraft system, and associated elements, to determine whether it is in a condition for safe operation. Such checks may be conducted on-site by direct inspection; remotely via aircraft system monitoring and health ground and flight checks, or a combination of both as approved in the aircraft’s flight manual.

(b) No person may continue a BVLOS UA operation when the person knows or has reason to know that the UAS, or associated elements, are no longer in a condition for safe operation.

108.37 Operation near aircraft; low altitude right-of-way rules

(a) Every uncrewed aircraft operating below 500’ AGL and away from structures, must yield the right of way to all aircraft, airborne vehicles, and launch and reentry vehicles equipped and broadcasting their position via ADS-B out or Traffic Awareness Beacon Systems (TABS). Yielding the right of way means that the small uncrewed aircraft must give way to the aircraft or vehicle and may not pass over, under, or ahead of it unless there is adequate separation.

(b) Every crewed aircraft, airborne vehicle, and launch and reentry vehicle operating below 500’ AGL and away from structures, that is not equipped and broadcasting their position via ADS-B out or TABS must yield the right of way to all uncrewed aircraft. Yielding the right of way means that the crewed aircraft or vehicle must give way to the uncrewed aircraft and may not pass over, under, or ahead of it unless there is adequate separation.

(c) Every uncrewed aircraft operating below 500’ AGL and within 100 feet of a structure has right of way over all other aircraft, airborne vehicles, and launch and reentry vehicles.

(d) No person may operate an aircraft or an uncrewed aircraft in a manner that creates a collision hazard.

 108.XX Transient operations over human beings

To conduct transient operations –

1. The UA operations shall be a transient operation (with regard to flight over human beings) or includes transient flight over human beings. Transient flight over human beings is a transit route flight over people or a person. Transient operations are merely incidental to a point-to-point operation unrelated to the people or a person.

2. RPIC requirements.

a. A remote pilot in command –

i. Must use a UA that is eligible for transient operations pursuant to paragraph (c) of this section;

3. Uncrewed aircraft requirements for transient operations. To be eligible to conduct transient operations over human beings under this section, the UA must –

a. Have the minimum BVLOS capabilities; and

b. Software performs as intended.

4. Maintenance requirements for transient operations. The owner/operator must maintain the aircraft in an airworthy condition and,

a. Uses methods, techniques, and practices prescribed in the manufacturer’s current maintenance manual;

b. Has the knowledge, skill, and appropriate equipment to perform the work; and

c. Performs the maintenance, preventative maintenance, or alterations on the uncrewed aircraft in a manner using the methods, techniques, and practices prescribed in the manufacturer’s current maintenance manual.

108.XX Sustained operations over human beings

To conduct sustained operations over human beings –

1. The UA shall be sustained operation (with regard to flight over human beings) or includes sustained flight over human beings. Sustained flight is hovering above people or a person, flying back and forth over people or a person, or circling above people in such a way that the unmanned aircraft remains above some portion of the person or persons.

2. RPIC requirements

a. A remote pilot in command –

i. Must use a UA that is eligible for sustained operations pursuant to paragraph (c) of this section;

3. Uncrewed aircraft requirements for sustained operations. To be eligible to conduct sustained operations over human beings under this section, the UA must –

a. Meet the requirements for BVLOS operations per Subpart D.

4. System requirements

a. The UAS or associate elements performs as intended.

5. Maintenance requirements sustained operations. The owner/operator must maintain the aircraft in an airworthy condition and,

a. Uses the methods, techniques, and practices prescribed in the manufacturer’s current maintenance manual;

b. Has the knowledge, skill, and appropriate equipment to perform the work; and

c. Performs the maintenance, preventative maintenance, or alterations on the uncrewed aircraft in a manner using the methods, techniques, and practices prescribed in the manufacturer’s current maintenance manual.

The ARC also included the following regulations within Subpart B but did not include proposed regulatory text for any of them.[67] Many of them mirror regulatory themes within Part 107 and Part 91 operations (for example, rules pertaining to hazardous operation, airspace, and in-flight emergencies):

  • 108.12 Requirement for a remote pilot certificate
  • 108.13 Registration
  • 108.29 Operation at night
  • 108.20 Operations in shielded areas
  • 108.21 In-flight emergency
  • 108.23 Hazardous operation
  • 108.27 Alcohol or drugs
  • 108.35 Operation of multiple uncrewed aircraft
  • 108.41 Operation in certain airspace
  • 108.43 Operation in the vicinity of airports or heliports
  • 108.45 Operation in prohibited or restricted areas
  • 108.47 Flight restrictions in the proximity of certain areas designated by notice to airmen
  • 108.49 Preflight familiarization, inspection, and actions for aircraft operation
  • 108.51 Operating limitations

Notes & References

[1] U.S. Department of Transportation, Federal Aviation Administration, Aviation Rulemaking Committee Charter: UAS Beyond Visual Line-of-Sight Operations Aviation Rulemaking Committee 1 – 5 (2021), https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/UAS%20BVLOS%20ARC%20Charter%20(eff.%206-8-2021).pdf.

[2] Id. at 2.

[3] The four pillars are specifically addressed on page 19 of the report.

[4] UAS BVLOS Aviation Rulemaking Committee, Final Report, Appendix B, 199 – 210 [hereinafter Final Report].

[5] See id. at 161 – 179.

[6] Id. at 211 – 226 (Appendix C).

[7] Id. at 222 – 226 illustrating, in two tables entitled “Environmental Recommendations” and “General Recommendations,” that for each recommendation under the environmental and general categories, the “Potential Rule Location” is labeled as “NA.”

[8] Administrative Procedure Act, 5 U.S.C. § 553(b).

[9] Administrative Procedure Act, 5 U.S.C. § 553(b)(2).

[10] Administrative Procedure Act, 5 U.S.C. § 553(c).

[11] Id.

[12] 14 CFR § 11.1.

[13] Final Report at 68.

[14] See id. at 68 – 69 for descriptions of each proposed level.

[15] See id. at 69.

[16] Id.

[17] To learn more about the FAA’s compliance philosophy, see Federal Aviation Administration Safety Team, Compliance Philosophy, https://www.faa.gov/news/safety_briefing/2016/media/SE_Topic_16-10.pdf.

[18] See Final Report at 70.

[19] Id. at 71.

[20] Note that “UA” stands for “Uncrewed Aircraft.” See id. at 189.

[21] See id. at 77 – 79.

[22] See id. at 79 (citing “shielded area” definition in the Critical Infrastructures Protection Act, 42 U.S.C. § 5195(c) (2001)).

[23] Id.

[24] Id.

[25] Id. at 81.

[26] Id.

[27] See id. at 82.

[28] See id.

[29] Id.

[30] See id. at 83.

[31] Id.

[32] See id. at 85.

[33] See id. at 90 – 101 (recommendations AS 2.2 and 2.3). Note that “AE” stands for “Associated Elements.” See id. at 187.

[34] Id. at 106.

[35] See id.

[36] Id. at 107. Note that LSA stands for Light-Sport Aircraft.

[37] See id. at 110.

[38] See id. at 113.

[39] See id. at 115.

[40] See id. at 119 (recommendation OQ 2.8).

[41] Id.

[42] See id. at 121.

[43] See id. at 124 (recommendation OQ 2.13).

[44] See id. at 125.

[45] See id.

[46] U.S. Department of Transportation, Federal Aviation Administration, Aviation Rulemaking Committee Charter: UAS Beyond Visual Line-of-Sight Operations Aviation Rulemaking Committee 1 – 5 (2021), https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/UAS%20BVLOS%20ARC%20Charter%20(eff.%206-8-2021).pdf.

[47] See Final Report at 125 – 126.

[48] Id. at 129.

[49] Id. at 130.

[50] See id. at 132.

[51] See id.

[52] Id.

[53] See id. at 134 (includes the proposed regulatory text of 14 C.F.R. § 108.XX).

[54] Id. at 135.

[55] United States Environmental Protection Agency, What is the National Environmental Policy Act, https://www.epa.gov/nepa/what-national-environmental-policy-act#:~:text=The%20National%20Environmental%20Policy%20Act%20(NEPA)%20was%20signed%20into%20law,actions%20prior%20to%20making%20decisions.

[56] Final Report at 135.

[57] U.S. Department of Transportation, Federal Aviation Administration, Order 1050.1F  Environmental Impacts: Policies and Procedures, 1 (2015), https://www.faa.gov/documentlibrary/media/order/faa_order_1050_1f.pdf.

[58] See Final Report at 136.

[59] Id. at 139.

[60] Id.

[61] Id. at 140.

[62] Id.

[63] Id. at 146.

[64] See id. at 146. To learn more about the Preventing Emerging Threats Act of 2018, see https://www.congress.gov/bill/115th-congress/senate-bill/2836.

[65] See Id.at 151 – 156 for each proposed regulatory text change to existing regulations. Also, refer to previously described amendments to existing regulations in the “Analysis of Specific Recommendations” section.

[66] Id. at 161 – 163.

[67] Id.